`United States Court of Appeals
`For the Seventh Circuit
`
`No. 12-2984
`
`BRANDON STOLLINGS,
`
`Plaintiff-Appellant,
`
`v.
`
`RYOBI TECHNOLOGIES, INC. and ONE
`WORLD TECHNOLOGIES, INC.,
`
`Defendants-Appellees.
`
`Appeal from the United States District Court for the
`Northern District of Illinois, Eastern Division.
`No. 08 C 4006 — Gary S. Feinerman, Judge.
`
`ARGUED APRIL 4, 2013 — DECIDED AUGUST 2, 2013
`
`Before MANION, TINDER, and HAMILTON, Circuit Judges.
`HAMILTON, Circuit Judge. On May 9, 2007, Brandon Stollings
`lost an index finger and portions of other fingers in a table saw
`accident. Stollings sued the saw manufacturer, Ryobi Technolo-
`gies, alleging that Ryobi defectively designed the saw because
`it failed to equip the saw with either of two safety features: a
`riving knife—a small blade that holds the cut in the wood open
`to prevent kickbacks—and automatic braking technology—a
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`No. 12-2984
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`safety system that automatically stops the saw blade upon
`contact with human tissue. Stollings contends either safety
`feature would have prevented the accident. A jury returned a
`verdict in favor of Ryobi. Stollings has appealed.
`Stollings argues that the district court made three reversible
`errors: (1) failing to stop Ryobi’s counsel from arguing to the
`jury that Stollings’s counsel brought the case as part of a joint
`venture with the inventor of the automatic braking technology
`to force saw manufacturers to license the technology, and
`admitting hearsay evidence to support this improper argu-
`ment; (2) excluding the testimony of one of Stollings’s expert
`witnesses; and (3) giving two erroneous jury instructions. We
`find that Ryobi’s joint venture argument was improper and
`prejudicial, so we vacate the judgment and remand for a new
`trial. Because the remaining issues are likely to resurface if the
`case is retried, we address them and conclude that the court
`erred in excluding the expert testimony and in giving the jury
`a sole proximate cause instruction where Ryobi was not
`asserting a comparative fault defense or blaming a third party.
`I. The Improper Attack on Counsel’s Motives
`A. The Accident and Power Saw Safety
`We address first Ryobi’s improper attack at trial on the
`motives of plaintiff’s counsel, which requires us to provide the
`background on the accident and power saw safety. Stollings
`was injured while operating a Ryobi Model BTS20R table saw.
`The
`immediate cause of the
`injury was a common
`woodworking hazard known as a kickback. A kickback occurs
`when the kerf, the gap in the wood created by a saw’s cut,
`closes around the saw blade in such a way that the force of the
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`No. 12-2984
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`3
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`spinning blade throws the wood back at the user. If the saw
`operator is holding onto the wood, the unexpected movement
`can sometimes force the operator’s hand into the spinning saw
`blade. This is what happened to Stollings.
`Saw manufacturers include safety features to help protect
`users from kickback injuries. Ryobi equipped the saw with a
`“3-in-1” guard safety system. This safety system has three
`components: a splitter, anti-kickback pawls, and a blade
`shield. The splitter is a piece of plastic that rests behind the saw
`blade to prevent the kerf from closing around the saw. The
`anti-kickback pawls are serrated pieces of metal attached to the
`sides of the splitter that rest on the wood as it moves through
`the cut to prevent the wood from moving backwards. And the
`blade shield is a piece of plastic that covers the top of the blade
`to prevent the user’s hands from coming into contact with the
`blade. This system complied with the applicable guarding
`standards published by Underwriters Laboratory—a private
`company that sets industry safety standards—and the applica-
`ble federal Occupational Safety and Health Administration
`regulations.
`The 3-in-1 system is effective at reducing injuries when
`used correctly, but it has shortcomings. The principal problem
`is that many saw users deliberately disable the 3-in-1 guard
`system. There are two reasons for this. The plastic guard makes
`certain cuts more difficult to complete, and the guard can
`become clouded by sawdust and other material, thus obstruct-
`ing the user’s view of the saw blade as it cuts. The 3-in-1
`system is also interconnected. When a user removes the guard,
`he must also remove the splitter and the anti-kickback pawls,
`leaving the saw blade without any kickback protection. That is
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`No. 12-2984
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`what Stollings did. Despite warnings on the saw about the
`dangers of operating the saw without the guard, Stollings
`removed the guard and operated the saw without the safety
`protection. Before a reader concludes that this fact decides the
`case, though, we should note that Ryobi’s former chief engi-
`neer testified that he had removed the 3-in-1 system on his
`own home saw and had instead installed a riving knife.
`The jury heard evidence that Ryobi could have equipped its
`saw with two alternative safety features. The first is a riving
`knife, which is a cheap piece of metal or plastic similar to a
`splitter. Like a splitter, a riving knife rests behind the blade and
`holds the kerf open. Unlike the splitter in the 3-in-1 guard
`system, a riving knife is typically positioned closer to the saw
`blade, making it more effective at preventing kickbacks. Most
`important, it is independent of the guard system, so the user
`has no reason to remove it.
`The second additional safety feature is an automatic
`braking system, colorfully known as flesh detection technol-
`ogy. The automatic braking system prevents injury by stop-
`ping and retracting the blade at the moment the blade contacts
`flesh. The technology works by detecting the human body’s
`electrical current. When an operator’s flesh contacts the blade,
`the body’s electrical current triggers the safety system, which
`applies a brake and retracts the blade beneath the cutting
`surface. The saw stops within a few milliseconds, fast enough
`in most cases to leave the operator with only a minor, superfi-
`cial wound. The technology, however, is not cheap. It would
`add somewhere between $50 and $150 to the cost of a table
`saw.
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`No. 12-2984
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`Stephen Gass developed the automatic braking system in
`1999. Gass patented the technology and then attempted to
`license it to table saw manufacturers, including Ryobi. Gass
`and Ryobi entered negotiations over a licensing agreement, but
`the negotiations fell through and Ryobi never licensed Gass’s
`technology. Stollings maintains that Ryobi and other manufac-
`turers decided not to license Gass’s technology for fear of
`product liability exposure on saws that did not have the
`technology. Ryobi contends Gass’s terms were unreasonable
`and the technology was too expensive and unproven. In 2005,
`Gass founded a competing company named SawStop to
`manufacture and sell table saws that include his automatic
`braking system. Gass testified at trial as one of Stollings’s
`expert witnesses about the feasibility and effectiveness of the
`automatic braking system. He did not ask for or receive
`compensation for his testimony.
`B. The Trial Attack on Plaintiff’s Counsel
`In addition to the arguments one would expect Ryobi to
`make—that the saw complied with industry safety standards
`and that Stollings was responsible for his injury because he
`failed to use the 3-in-1 safety system—Ryobi framed the case
`for the jury as a joint venture between Gass and Stollings’s
`attorneys—Mr. Carpinello and Mr. Sullivan—to coerce Ryobi
`and other saw manufacturers to license and use Gass’s auto-
`matic braking technology. The district judge referred to this as
`Ryobi’s “conspiracy” theory, though the word conspiracy was
`not used in the presence of the jury.
`Ryobi’s attack on the motives of Stollings’s counsel began
`in its opening statement. More than half of it was dedicated to
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`No. 12-2984
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`the argument that the case was being brought by Stollings’s
`attorneys to intimidate the saw manufacturers. The implication
`of the argument was that the jury should not let Stollings’s
`counsel and Gass play them for chumps. Here are some
`examples from Ryobi’s opening statement:
`“The evidence is going to establish that there’s a
`joint venture between Mr. Carpinello and Mr.
`Stephen Gass …, whereby Mr. Carpinello will file
`product liability lawsuits against manufacturers that
`don’t pay Mr. Gass a royalty for his patent … .”
`“Mr. Carpinello has filed over 90 of these product
`liability lawsuits … and Mr. Gass is his expert
`witness in every one of those cases … .”
`“So what we have here is a patent IP case, an intel-
`lectual property case, masquerading as a personal
`injury case … .”
`“There’s something going on below the surface and
`that’s why, in [this] opening statement, I want you
`to be aware of what is going on here. So the joint
`venture that exists in this case is part of an overall
`strategy to force the manufacturers to pay Mr. Gass
`for his technology … .”
`“So what are we talking about here? We’re talking
`about an attempt to intimidate manufacturers to pay
`[Gass] a royalty so they don’t have to be sued by Mr.
`Carpinello all over the country because they’re
`making a saw that complies with what the design
`standards required.”
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`No. 12-2984
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`
`At the beginning of the opening statement, Stollings’s
`counsel objected, arguing that these insinuations were prejudi-
`cial and not based on any evidence. Ryobi responded that it
`had evidence of the supposed joint venture. The judge permit-
`ted Ryobi to continue, informing the jury that opening state-
`ments are not evidence. Ryobi’s “evidence” was an article
`about Gass from The Oregonian newspaper. Stollings had
`made a valid hearsay objection to the article before trial, but
`the court permitted Ryobi to use the article during its opening
`statement.
`After the court overruled Stollings’s objection, Ryobi’s
`counsel continued: “The evidence will establish that there’s a
`joint venture between Mr. Carpinello and Mr. Gass … .”
`Ryobi’s counsel then told the jury about the Oregonian
`newspaper article and argued that it was evidence of the joint
`venture. Ryobi’s counsel used a blown-up version of the article
`to draw the jury’s attention to what Ryobi believed were the
`critical points. Pointing to a section of the article that said Gass
`had been approached by products liability lawyers, Ryobi’s
`counsel said: “Oh, this thing about the joint venture. Gass says
`he has been approached by lawyers looking to launch product
`liability suits that ultimately could force companies to license
`his technology. That’s part of his strategy.” Ryobi’s counsel
`then concluded: “And that’s the case that Mr. Carpinello has
`filed here, just like Mr. Gass said, to launch product liability
`suits that will ultimately force companies to license his technol-
`ogy. Part of a game plan to sue the manufacturers all across the
`country, have Mr. Carpinello coming after the manufacturer
`alleging to a jury that the product is defective and unreason-
`ably dangerous … .”
`
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`No. 12-2984
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`Throughout the trial, Ryobi continued to link the motives
`of Stollings’s attorneys with Gass’s desire to persuade saw
`manufacturers to license his technology. Ryobi’s counsel made
`repeated references to the number of saw cases in which
`Stollings’s attorneys were involved, asked witnesses whether
`the attorneys were involved in other cases in which the
`witnesses had testified, and read the names of Stollings’s
`attorneys off of deposition transcripts from other cases.
`Ryobi also emphasized the joint venture theme in its closing
`argument. “What’s going on in this case?” counsel asked
`rhetorically: “This is that Oregonian newspaper article. Why is
`that significant? Because these are quotes from Mr. Gass … and
`he doesn’t deny these quotes.” Ignoring the facts that the
`article did not directly quote Gass and that Gass in fact had
`denied that the article directly quoted him, Ryobi’s counsel
`continued:
`Gass says he has been approached by lawyers
`looking to launch product liability suits that
`ultimately could force companies to license his
`technology … . I didn’t say that. That’s what
`Gass says. Approached by lawyers to launch
`product liability suits that ultimately could force
`companies to license his technology. That’s why
`he has—has been sitting here with his partner
`throughout
`this
`trial, not charging Mr.
`Carpinello or Mr. Sullivan to be here. And he has
`been their expert in all of these cases that they’ve
`filed against table saw manufacturers … .
`
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`No. 12-2984
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`
`By the end of the trial, the district judge realized that
`Ryobi’s argument had gone too far. The judge had always
`recognized that Ryobi was entitled to attack the credibility of
`Gass for bias, but earlier in the trial the judge had said that an
`attack on the motives of Stollings’s lawyers “would be out of
`bounds.” At that time the judge did not believe that such an
`attack had occurred. Later in the trial, after reviewing the
`transcripts, however, the judge recognized that the attack had
`also been aimed directly against Stollings’s lawyers.
`The judge then concluded that it would likely be reversible
`error if he did not allow Stollings to rebut the accusations. Tr.
`at 1653. Stollings asked for free rein to discuss the facts of the
`other saw cases to which Ryobi referred, while Ryobi argued
`that any reference to the other saw cases would be unduly
`prejudicial. The judge’s solution was an instruction telling the
`jury that, of the cases Ryobi referred to, only one was decided
`on the merits, and it resulted in a verdict for the plaintiff.
`Unfortunately, however, the instruction also told the jurors
`that they were free to consider Ryobi’s “joint venture” theory
`in reaching their decision. The instruction said in relevant part:
`You’ve heard mention of other table saw cases
`filed by Mr. Carpinello and Mr. Sullivan against
`various table saw manufacturers in which Dr.
`Gass served as an expert witness. Only one of
`those other table saw cases has been tried to
`verdict. That verdict was in favor of the plaintiff
`in that case. You are not to consider, discuss, or
`speculate about which manufacturer was the
`defendant in that case; nor may you consider,
`discuss, or speculate about the brand or model of
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`No. 12-2984
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`the saw in that case; nor may you consider,
`discuss, or speculate about where or when that
`trial took place. You are not to consider the
`verdict in that case as having any direct bearing
`on whether the table saw in this case was
`negligently designed or unreasonably dangerous
`… . In the rest of the table saw cases, no court or
`jury has made any decision one way or the other
`regarding the merits of those cases … . You may
`consider this information about the other table
`saw cases solely for the purposes of: 1.
`Evaluating the weight of Dr. Gass’s testimony;
`and 2. Considering whether the other table saw
`cases brought by Mr. Carpinello and Mr.
`Sullivan in which Dr. Gass served as an expert
`witness were brought to force table saw
`manufacturers to license table saw technology.
`The weight to be given to this information is up
`to you.
`C. Analysis of the “Joint Venture” Argument
`Stollings argues that Ryobi’s attacks on the motives of his
`counsel deprived him of a fair trial, which requires him to
`show that Ryobi’s argument was improper and that any errors
`the district court made in permitting improper lines of
`argument were not harmless. See Fed. R. Civ. P. 61; Perry v.
`Larson, 794 F.2d 279, 285 (7th Cir. 1986) (to require a new trial,
`error must be “substantial enough to deny [party] a fair trial”).
`If an argument is improper, five factors are relevant as we
`consider whether the improper argument deprived a party of
`a fair trial: (1) the nature and seriousness of the argument, (2)
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`No. 12-2984
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`whether the statement was invited by the opposing party, (3)
`whether the statement could be rebutted effectively, (4)
`whether an effective curative instruction was given, and (5) the
`weight of the evidence. See United States v. Klebig, 600 F.3d 700,
`720-21 (7th Cir. 2009). Stollings contends that Ryobi’s attack on
`1
`the motives of his counsel—exacerbated by the admission of
`hearsay evidence and an improper summation of the evidence
`during Ryobi’s closing argument—was
`improper and
`sufficiently prejudicial to deprive him of a fair trial. We agree.
`Ryobi’s argument that plaintiff’s counsel brought this suit
`as part of a joint venture with Gass to force Ryobi to license
`Gass’s technology was improper. The first problem with this
`argument is that it is not relevant to any issue in dispute. The
`suggestion that the case was an intellectual property case
`“masquerading as a personal injury case” did not bear on
`whether Ryobi designed and sold a defective product. How
`does a statement about counsel’s motive help a jury decide
`whether there was an injury? A duty? A breach of that duty?
`Or causation?
`The argument worked by directing the jury’s focus away
`from the elements of the case to an extraneous and
`inflammatory consideration. It said to the jury, don’t let
`Stollings’s lawyers trick you into finding Ryobi liable for his
`
`1 d
`
` These factors have been developed in criminal cases like Klebig to
`etermine whether prosecutorial misconduct prejudiced a defendant. The
`factors are equally valuable in evaluating civil trials, at least when timely
`objections are made, as they were here. If there is any difference in the
`harmless error determination between criminal and civil trials, it is in the
`strength of the showing required to demonstrate that an error is harmless,
`not in the relevant considerations.
`
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`12
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`No. 12-2984
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`injury because this case is really not about Stollings, it’s about
`Gass and his technology. Such an argument aimed at a party’s
`counsel is improper and risks depriving the party of a fair trial.
`See Gruca v. Alpha Therapeutic Corp., 51 F.3d 638, 645-46 (7th
`Cir. 1995) (remanding for new trial; improper for products
`liability defendant to highlight negligence of third party when
`third party’s conduct was not at issue in case); Davis v. FMC
`Corp., 771 F.2d 224, 233 (7th Cir. 1985) (same); see also United
`States v. Xiong, 262 F.3d 672, 675 (7th Cir. 2001) (noting attacks
`on counsel “can prejudice the [opposing party] by directing the
`jury’s attention away from the legal issues”).
`The second problem is that no admissible evidence
`supported the argument. Ryobi based its accusation solely on
`an article about Gass published in the Oregonian newspaper,
`and the article was inadmissible hearsay. The article reported:
`“Gass says he has been approached by lawyers looking to
`launch product liability suits that ultimately could force
`companies to license his technology.” Ryobi used the article to
`assert that Gass said he was working with product liability
`lawyers to force manufacturers to license his technology. This
`is classic hearsay: an out-of-court statement offered to prove its
`truth—that is, that Gass made the statement. See Chicago
`Firefighters Local 2 v. City of Chicago, 249 F.3d 649, 654 (7th Cir.
`2001) (newspaper article was inadmissible hearsay when
`offered as proof of article’s contents). Federal Rule of Evidence
`802 plainly prohibited admission of the article for this purpose.
`The rules of evidence prohibit most hearsay evidence
`because it is so often unreliable. This concern is illustrated by
`looking at the ambiguities in the Oregonian article. The author
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`No. 12-2984
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`13
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`did not use quotation marks to indicate that he was quoting
`Gass, so it is unclear even whether the author was asserting
`that the conclusion about forcing companies to license Gass’s
`technology was Gass’s conclusion or the author’s. (On cross-
`examination Gass denied that the author was quoting him.) It
`is also ambiguous whether the article said that the lawyers
`launched the product liability suits for the purpose of forcing
`the companies to license Gass’s technology or whether such
`licensing might simply be a consequence of the lawsuits. The
`statements in the article were made out of court, and the
`declarant (the reporter) was not available for Stollings to cross-
`examine. The judge should have excluded the article. 2
`We need not decide if the improper admission of the
`hearsay article and its use in the opening statement were
`reversible error on their own. Cf. Jordan v. Binns, 712 F.3d 1123
`(7th Cir. 2013) (finding that some errors in admitting hearsay
`testimony were harmless in light of entire trial record). This
`entire line of argument was sufficiently prejudicial to warrant
`a new trial. The improper statements were prejudicial because
`they constituted a substantial part of the case, they were not
`invited by Stollings, they could not be rebutted effectively, an
`effective curative instruction was not given, and the weight of
`
`2 o
`
` Ryobi then exacerbated this problem by giving an inaccurate summation
`f the evidence in its closing argument. In closing, Ryobi’s counsel
`reminded the jury of the newspaper article and asked rhetorically, “Why is
`that significant?” To which counsel answered, “Because these are quotes
`from Mr. Gass … . Mr. Gass tells us in this newspaper article—and he
`doesn’t deny these quotes.” This statement was incorrect. Gass explicitly
`denied that the reporter quoted him in the article. Stollings did not object
`to this point during the closing argument, but by this time damage had
`already been done and could not have been cured.
`
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`No. 12-2984
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`the evidence was not overwhelming in Ryobi’s favor. See
`Klebig, 600 F.3d at 720-21.
`To explain these factors, first, the attack on plaintiff’s
`counsel was both serious and substantial. Ryobi dedicated
`most of its opening statement to planting the seed in the jury’s
`mind that Stollings’s counsel had a suspect motive in bringing
`this case. Over half of the opening statement focused on the
`intellectual property consequences of the case and the existence
`of the alleged conspiratorial “joint venture” between Gass and
`Stollings’s counsel. During the trial, Ryobi repeatedly drew
`attention to the number of saw cases plaintiff’s counsel had
`brought, referring to plaintiff’s counsel by name and even
`pointing at them. In closing, Ryobi returned to the theme,
`reminding the jury of the Oregonian newspaper article and
`suggesting that the article explained what was really going on
`in the case. This sustained focus on the motives of plaintiff’s
`counsel in all phases of the trial was substantial.
`Next, the attack on counsel was not invited. The district
`judge originally allowed Ryobi to make the joint venture
`argument because it understood the argument to be limited to
`Gass’s credibility and motives. The judge said that “the
`argument that the defendant is making is certainly unusual
`and not something that I in my limited experience have seen,”
`but found that it “goes to Dr. Gass’s motive for testifying and
`his bias.” Tr. at 1088–89. Because the plaintiff chose to use Gass
`as an expert, the judge reasoned, Stollings’s counsel had to
`expect Ryobi to argue that Gass was not credible. Tr. at
`1091–92. If the argument had been limited to Gass’s motive for
`testifying and his credibility, it would have been fair game and
`we would see no error. The joint venture argument that Ryobi
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`No. 12-2984
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`15
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`actually made went well beyond a challenge to Gass’s
`credibility. Nothing in the plaintiff’s case invited an attack on
`the motive of plaintiff’s counsel.
`Ryobi also argues that Stollings had an adequate
`opportunity to rebut the attack and chose not to. Because
`Ryobi first made the comments in its opening statement,
`Stollings had an opportunity to rebut the charge during his
`examination of Gass and during closing argument. By
`declining not to, Ryobi suggests, Stollings concluded that the
`comments were not a big deal. This argument misses the point.
`We do not look to whether there was simply an opportunity to
`challenge the statement to determine whether the opportunity
`was adequate. Rather the opposing party must have an effective
`opportunity to rebut the charge. It is hard to imagine what
`Stollings could have done in this case to dispel the charge that
`his lawyers were bringing an intellectual property case
`masquerading as a products liability case. Once the argument
`was raised, Stollings had to choose between two bad
`alternatives. He could spend time addressing the argument
`and risk suggesting to the jury that it was important, or he
`could do his best to ignore the argument and hope the jury
`focused on the elements of the case. The fact that Stollings
`faced this dilemma does not mean that he had an adequate
`opportunity to rebut the argument.
`Nor did the court’s instruction cure the prejudice. After
`realizing that Ryobi had attacked the motives of Stollings’s
`lawyers, the judge concluded that a curative instruction was
`needed. The judge’s solution was to instruct the jury that the
`only other similar case that was tried to a jury resulted in a
`plaintiff’s verdict, but taken as a whole, the instruction was not
`
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`16
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`No. 12-2984
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`effective and may well have made the situation worse. The
`judge told the jury that the plaintiff’s verdict could be used for
`purposes of considering “whether the other table saw cases
`brought by Mr. Carpinello and Mr. Sullivan in which Dr. Gass
`served as an expert witness were brought to force table saw
`manufacturers to
`license table saw technology.’” This
`instruction thus incorrectly told the jury that it could consider
`the motives of Stollings’s lawyers in bringing this case, and it
`did so after preventing Stollings’s lawyers from offering
`additional evidence about those cases that could have taken
`some of the sting out of the attack and the instruction. Under
`no circumstances was counsel’s motive a proper argument for
`the jury to consider. The motives of Stollings’s lawyers had no
`bearing on any element of the case.
`Finally, the evidence did not so strongly favor Ryobi that
`the error was harmless. Ryobi had some strong evidence: the
`saw had safety features that complied with federal and
`industry standards; the automatic braking technology was
`expensive; and Stollings admitted that he failed to use the
`safety guard, which could have prevented the accident. Yet
`there was also evidence in Stollings’s favor. Ryobi’s former
`chief engineer testified that he did not use the 3-in-1 guard
`system on his own saw because he believed it was dangerous
`when it fogged up. He also testified that he installed a riving
`knife on his own saw because he believed it was safer than the
`Ryobi guard. Unlike the automatic braking technology, riving
`knives are both cheap and proven, and they have been widely
`accepted by European regulators. And some of Stollings’s
`evidence in favor of the automatic braking system had been
`excluded erroneously by the court.
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`No. 12-2984
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`
`On balance, the evidence supporting the verdict was not
`overwhelming, so the joint venture attack on counsel may well
`have influenced the outcome of the trial. Accordingly, we find
`that Ryobi’s statements about Stollings’s lawyers’ motives
`deprived Stollings of a fair trial. He is entitled to a new one. We
`next address the remaining issues in the appeal in the interest
`of judicial economy. These issues are almost certain to arise in
`a new trial. If we deferred their their resolution, we would risk
`upsetting a second verdict in a subsequent appeal. We turn
`now to the exclusion of plaintiff’s proposed expert testimony.
`II. Exclusion of Expert Testimony
`A. Factual Background
`Stollings planned to offer expert testimony from John
`Graham, a scholar who served from 2001 to 2006 as the
`director of the Office of Information and Regulatory Affairs in
`the federal Office of Management and Budget and is now the
`dean of the Indiana University School of Public and
`Environmental Affairs. Graham was to testify that including
`automatic braking technology on all power saws would be
`socially beneficial because the average cost of accidents per
`saw that would be prevented by the technology exceeded the
`cost of the braking system. Graham estimated that saws that
`lack the automatic braking technology cost society an average
`of $753 in accident costs over the lifetime of the average saw.
`He concluded that it would therefore make economic sense to
`install the technology on all saws if the cost of doing so was
`less than $753 per saw. The district judge held before trial that
`Graham’s testimony should be excluded under Federal Rule of
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`18
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`No. 12-2984
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`Evidence 702 as not reliable or relevant for the trier of fact. We
`conclude that this ruling was an abuse of discretion.
`Graham submitted an expert report two years before trial
`laying out his opinion, methodology, supporting data, and
`qualifications as required by Federal Rule of Civil Procedure
`26(a)(2)(B). Graham described how he reached his conclusion
`by calculating the average cost of a table saw injury (medical
`costs, lost wages, pain and suffering, and litigation costs). He
`then multiplied this figure by the likelihood that a saw user
`would suffer an injury over the lifetime of a saw, yielding an
`estimate of the societal costs of injury per table saw. He then
`discounted this number by the effectiveness rate of the
`automatic braking technology, which he estimated to be 90
`percent. The result was an estimate of the average societal costs
`of injuries per saw that occur because the technology is not
`installed. The report provided the sources for all of these
`inputs. Of particular relevance, Graham estimated the
`effectiveness of the braking technology to be 90 percent based
`on Gass’s testimony that the technology worked in the “vast
`majority” of instances.
`Ryobi moved before trial to exclude his testimony for a
`number of reasons, including, in passing, the reliability of the
`90 percent estimate. In response to Ryobi’s motion, the district
`court focused on the basis for Graham’s assumption that the
`automatic braking technology was 90 percent effective at
`preventing injuries. At the end of the hearing, Stollings’s
`counsel received the court’s leave to make a submission “to
`answer [the court’s] specific fact questions, the 90 percent and
`the source of that … .”
`
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`No. 12-2984
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`Graham submitted a supplemental report ten days later
`that provided a more detailed justification for the 90 percent
`assumption. The new justification estimated the rates of three
`common forms of failure (injuries when the saw is turned off,
`injuries when the detection technology is disabled, and injuries
`that occur when the operator’s hand is moving too rapidly into
`the blade for the technology to activate in time). Again Graham
`estimated that the technology would prevent 90 percent of
`accidents.
`The court then held another hearing and decided to exclude
`Graham’s testimony. This ruling was explained in an opinion
`issued after trial. The court struck Graham’s supplemental
`report as untimely because it was submitted one month before
`trial and it was based on information that was available at the
`time Graham prepared his initial report. The court noted that
`when it allowed Stollings to make a submission, it should have
`been limited to an explanation of how Gass’s testimony
`supported the 90 percent assumption and not a new
`justification for the assumption. The court then concluded that
`Graham’s testimony had to be excluded under Federal Rule of
`Civil Procedure 702 because the 90 percent effectiveness input
`was not reliable rendered Graham’s entire opinion unreliable.
`The court also agreed with a magistrate judge’s opinion in a
`similar case finding that Graham’s testimony was not relevant
`because the cost to society of saw accidents did not speak to the
`utility of Ryobi’s specific saw design. Accordingly, the court
`prohibited Graham from testifying at trial. Stollings argues that
`the exclusion of the expert report was erroneous.
`B. Whether Graham’s Testimony Satisfied Rule 702
`
`
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`20
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`No. 12-2984
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`Expert testimony is admissible at trial under Federal Rule
`of Evidence 702 if the testimony is relevant to a fact in issue, is
`based on sufficient facts or data, and is the product of reliable
`scientific or other expert methods that are properly applied.3
`The district court is responsible for acting as a gatekeeper to
`ensure that all admitted expert testimony satisfies the Rule’s
`reliability and relevance requirements. See Daubert v. Merrell
`Dow Pharmaceuticals, Inc., 509 U.S. 579, 592–93 (1993). But the
`district court’s role as gatekeeper does not render the district
`court the trier of all facts relating to expert testimony. See
`Daubert, 509 U.S. at 595 (“The focus, of course, must be solely
`on principles and methodology, not on the conclusions that
`they generate.”); Smith v. Ford Motor Co., 215 F.3d 713, 718 (7th
`Cir. 2000) (“soundness of the factual underpinnings of the
`expert’s analysis and the correctness of the expert’s conclusions
`based on that analys